Where Are the Military Chaplains on Vaccine Mandates?
The near blanket denial of religious accommodations and exemptions within the Military must be addressed. The issue of Religious Exemptions and vaccine mandates has become clear. Religious exemptions and/or accommodations are being denied. Our service men and women are now being told that their protected religious belief systems are subjugated to Department of Defense (DOD) health dictums (a belief that the injections would ‘protect the Force’ by preventing transmission and infection – they do not) and confusing guidance from military Chaplains that either do not know, or choose to know what the law says on the issue of belief systems, legal protections and the law.
Foreseeable -- news headlines are now replete with stories about how the Defense Department has been impacted by those seeking religious exemptions.
In a recent 06 Aug, 22 article in Military.com the authors noted “…The staggering number of unvaccinated Guardsmen sets up an unprecedented situation in which the Pentagon has drawn a line in the sand, but Army officials and Guard leaders interviewed by Military.com all agreed that so many troops being forced out would undermine the force”.[i]
They went on to add “…Guard soldiers were ordered to be vaccinated by July 1, far later than most other services. Yet roughly 40,000 of them blew off the Pentagon's directive. Troops in all branches have been required to be immunized against at least a dozen ailments including the flu and hepatitis for years, with the coronavirus vaccine a rare instance where vaccination has become a political hot potato.” [ii]
“...blew off…” Really? That’s the phrase you used? How many of those service members actually filed for a religious accommodation verse ‘blew off’ the EUA product, and why?
For those who might need a quick refresher as to how most of this chaos began - Over two years ago the Department of Defense (DOD) established a deadline for all Federal Employees to either get vaccinated or submit a request for religious exemptions to the COVID-19 injections. This required all civilian and contractor personnel within the DOD and our active, guard and reserve service members to submit a religious accommodation request for the new ‘mandated’ Emergency Use Authorization (EUA) COVID-19 ‘vaccine’ accommodation or face being fired – or get injected to keep your job, your clearance and your way of life for you and your family.
Hundreds and thousands of military and civilian personnel across the Defense Department began to scramble to write up a statement that reflected their beliefs. Some sought legal assistance, others sought personal clergy to write statements on their behalf, many sought the advice from their local military service Chaplains and those that did faced vague guidance and tried to navigate the military regulations as best they could - hopeful that if they stated their religious beliefs, they would be fine.
To this day -- DOD Chaplains have been remarkably silent on the chaos that ensued. Well, some have. Others have been busy denying religious accommodation requests.
In one example, a White Paper was approved by FORSCOM Chaplain CH (COL) Rajmund Kopec with a set of guidance to provide “…United States Army Forces Command (FORSCOM) Chaplain Sections (CS) and Unit Ministry Teams (UMT) information to aid them in discussing the ethical permissibility of receiving a COVID-19 vaccination.” The startling fact was that the guidance included a 'scripture' from most religious groups to prove that their faith approves of vaccination. Notably absent in the FORSCOM Chaplains’ vaccine religious accommodation guidance was the fact that the law is clear. A religious person does not need to conform to the tenants of the religion they profess to follow - especially if it goes against their own beliefs or a belief system that falls outside of a traditional ‘mainstream 'religion'. The Chaplain CH (COL) Rajmund Kopec approved White Paper went so far as to provide references from across the traditional religious faiths that affirmed “vaccines” and COVID-19 injections specifically – yet -- failed almost entirely to cite any constitutional law that apply to one’s defense of their religious beliefs.
For many others within DOD – those not of a specific religious ‘organized’ faith - wrongly thought that since they were not ‘religious’ or ‘went to Church’ that they could not apply for a religious exemption. This is not true. The law is clear -- one’s deeply held belief systems based on a set of imponderable questions that do not adhere to a traditional religious faith could have been used in a religious accommodation request. Did the Chaplains tell you this?
Why are the Chaplains not providing guidance to DOD Senior Leadership that there are grave constitutional issues that must be upheld? With the number of lawsuits that have ensued since the mandates came out – one would have hoped that the Chaplains were there to provide their legal basis for denying religious exemptions[iii]. To be fair, there are hundreds of Chaplains across the Services. Most, given the benefit of doubt, do not intend to be the religious arbitrator of one’s faith, rather they are there to minister to those in need. I would even argue that most did not imagine that they would be the barrier that one must cross in order to remain free to uphold a legally permitted defense of one’s religious beliefs.
In an ironic twist of fate however – the very people that volunteered to serve and defend the Constitution are being impacted by assessments made by Military Chaplains with regard to the service members constitutionally protected first amendment ‘free exercise clause’ rights and their religious accommodation requests. [iv]
Further, service members are being subjected to a poorly applied, narrowly scoped, so-called religious criteria (chapters and verses of Bible text as an example) by military Chaplains writing White Papers on how to defeat a religious accommodation request. [v] Of note, some of the Services are already ramping up surveys for all the ‘refusers’ on the topic of the next EUA vaccine that purports not to have been tested using aborted fetal cells. This is not over. Chaplains – again – will be pulled into the assessment and review process for the next round of mandated pharmaceutical interventions.
What does the Law tell Us?
Military Chaplains are now finding that aside from providing assessment about one’s sincerity and faith -- they are being challenged on the law and religious protections. Cases being brought against DOD on the vaccine mandate topic are referencing the U.S. Supreme Court, in Frazee V. Illinois Department of Security, 489 U. S. 829, found that a state may not deny an accommodation simply because a person is not a member of a formal religious organization. A deeply held religious belief system, addressing imponderable topics is required – and that may or may not be subjected to a BDE Chaplain writing that a service member’s request is denied because they did not attend church regularly.
And yet – with the above laws– we find Military Chaplains making approval (denied) decisions of a religious accommodation based on the fact that they decided that a service member was not devout enough in his/her attendance of a ‘church’.
Per one BDE Chaplain – the service members religious exemption was denied because the Chaplain decided that the service members was not familiar enough with the Bible and its theological teachings and the Chaplain decided that despite a stated belief in Jesus as the Son of God – it was not enough since he was not currently a member of a local church.
Chaplains might want to review this again -- Moreover, “a sincere religious believer doesn’t forfeit his religious rights merely because he is not scrupulous in his observance,”[43]
..And… the Chaplain could possibly benefit from a review of the following Equal Employment Opportunity Commission (EEOC)
“…that Title VII requires employers to accommodate those religious beliefs that are “sincerely held.”[38] Whether or not a religious belief is sincerely held by an applicant or employee is rarely at issue in many types of Title VII religious claims.[39] For example, with respect to an allegation of discriminatory discharge or harassment, it is the motivation of the discriminating official, not the actual beliefs of the individual alleging discrimination, that is relevant in determining if the discrimination that occurred was because of religion. A detailed discussion of reasonable accommodation of sincerely held religious beliefs appears in § 12-IV, but the meaning of “sincerely held” is addressed here. Like the religious nature of a belief, observance, or practice, the sincerity of an employee’s stated religious belief is usually not in dispute and is “generally presumed or easily established.”[40] Further, the Commission and courts “are not and should not be in the business of deciding whether a person holds religious beliefs for the ‘proper’ reasons. We thus restrict our inquiry to whether or not the religious belief system is sincerely held; we do not review the motives or reasons for holding the belief in the first place.”[41] The individual’s sincerity in espousing a religious observance or practice is “largely a matter of individual credibility.”[42] Moreover, “a sincere religious believer doesn’t forfeit his religious rights merely because he is not scrupulous in his observance,”[43] although “[e]vidence tending to show that an employee acted in a manner inconsistent with his professed religious belief is, of course, relevant to the factfinder’s evaluation of sincerity.”[44] Factors that – either alone or in combination – might undermine an employee’s credibility include: whether the employee has behaved in a manner markedly inconsistent with the professed belief;[45] whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons;[46] whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons);[47] and whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.” [vi]
A Little Lighter Reading for our Military Chaplains and the Law
During the 1960s, the Court began to expound on the topic of ‘what is a religious viewpoint or belief’. According to the Freedom Forum Institute “…In its 1961 decision Torcaso v. Watkins, the Court addressed the establishment clause that would prevent the government from aiding “those religions based on a belief in the existence of God as against those religions founded on different beliefs.” [vii] “In its 1965 ruling United States v. Seeger, the Court held key challenges over interpretation of the Universal Military Training and Service Act of 1948. The case involved denial of conscientious objector status to individuals who based their objections to war on sources other than a supreme being, as specifically required by the statute. The Court interpreted the statute as questioning “[w]hether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption. Where such beliefs have parallel positions in the lives of their respective holders, we cannot say that one is ‘in relation to a Supreme Being’ and the other is not.” [viii]
Imponderable Belief Systems
Military Chaplains – another word about the word ‘imponderable’ ‘belief systems and the law. From the Stevens and McMillian law firm the word ‘imponderable’ is a key term. “California’s Fair Employment and Housing Act (FEHA) outlines a test that has three components that can be used together to make such determinations. The first part requires that the religion in question focuses on fundamental questions related to matters of a profound, imponderable nature. For example, religion might address the meaning of life or humanity’s place in the universe. The second part of the test asserts that religion, by nature, is comprehensive and includes a system of beliefs rather than merely a solitary, isolated teaching. An example of this can be found in any of the major traditional religions.” [ix] Also see Africa v. Commonwealth of Pennsylvania, 662 F.2d 1025, 1032 (3rd Cir. 1981) and Friedman v. Southern California Permanente Medical Group, 102 Cal.App.4th 39, 2002 (California Court of Appeal adopts the Africa test).
Military Chaplains and the PREP Act
Our DOD Chaplains would be well served if they read the PREP ACT -- which regrettably, among other things - provided indemnity to the vaccine (injection) manufacturer. In addition to a haphazard application of the constitution and employment law, Military Chaplains are – if a denial is submitted – subjecting the service member to further legal challenges. This is an important topic – for another time – but it is vital that the interdependence between policy and law, especially as it applies to the DOD and the approval of religious accommodations be closely examined.
Closing Remarks:
Religion and belief systems and the myriad of imponderable questions that one can ask – when it comes to what is injected into your body - is not a narrow set of arguments framed by the topic of ‘aborted fetal cells’ or ‘a Church leader said it was okay’ or ‘you might not go to the hospital if you get it’ or ‘take this particular pharmaceutical product or lose your job because DOD said it was a legal order’ or ‘a Chaplain denied my request because I was not deemed smart enough on the scriptures’ – it is much more complex. The emergent (emergence) crisis, as seen by the exodus of DOD personnel, the recruitment crisis and the growing number of lawsuits against the DOD is just such a phenomenon in complex systems. With some foresight, DOD Senior Leadership and its Chaplains could have avoided the chaos.
[i] https://www.military.com/daily-news/2022/08/06/military-faces-national-guard-refusals-and-legal-blockade-over-disobeying-covid-19-vaccine-order.html
[ii] https://www.military.com/daily-news/2022/08/06/military-faces-national-guard-refusals-and-legal-blockade-over-disobeying-covid-19-vaccine-order.html
[iii] https://www.militarytimes.com/news/pentagon-congress/2022/02/18/could-the-supreme-court-strike-down-the-militarys-vaccination-mandate/
[iv] https://www.justia.com/constitutional-law/religious-freedom-under-the-constitution/
[v] https://www.justia.com/constitutional-law/religious-freedom-under-the-constitution/
[vi] https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination#h_9546543277761610748655186
[vii] https://www.freedomforuminstitute.org/about/faq/has-the-u-s-supreme-court-defined-religion/
[viii] https://www.freedomforuminstitute.org/about/faq/has-the-u-s-supreme-court-defined-religion/
[ix] https://scmclaw.com/questions-religious-discrimination/